Difference of Opinion (Ikhtilaaf) Proves Islam’s Dynamism (4/4)

Public properties:

The Messenger of Allah (sallAllahu ‘alaihi wa sallam) said: “Muslims are partners (associates) in three things: in water, pastures and fire.” [Narrated by Ibn ‘Abbas and reported by Abu Dawud]

The Messenger of Allah (sallAllahu ‘alaihi wa sallam) said: “Three things are not prevented from (the people); the water, the pastures and the fire.” [Ibn Majah narrated from Abu Hurairah]

“Abyadh ibn Hammal came to the Prophet (sallAllahu ‘alaihi wa sallam) and asked him to grant him a salt laden land and he granted it to him. And when he left, one person in attendance with the Prophet (sallAllahu ‘alaihi wa sallam) said, “Do you know what you granted him? You granted him the uncountable water (Al-‘udd)”. He (sallAllahu ‘alaihi wa sallam) then took it away from him.” [Narrated from At-Tirmidhi]

1. We deduce a number of rulings from these three Hadiths and generate a collective principal. This is achieved by combining a number of rulings or deriving a rule from a general verse.

2. We understand that public property is the permission of the Lawgiver to the community to share the use of an asset. Assets which are public property are those which the Lawgiver stated as belonging to the community as a whole, and those which individuals are prevented from possessing as indicated by the first two hadith.

3. These evidences show that people are partners and associates in water, pastures and fire, and that the individual is prohibited from possessing them. In origin no reason is given to why utilities are public properties and implies that these three things are the only ones which represent public property with no consideration given to their depiction for the community’s need for them.

4. However, there were occasions when the Prophet (sallAllahu ‘alaihi wa sallam) allowed such public property to be owned by individuals. It is known that the Prophet (sallAllahu ‘alaihi wa sallam) allowed water in At-Taif and Khaybar to be owned by individuals, and it was used for irrigating their plants and farms. Had the sharing of water been just because it is water and not because of the consideration of the community’s need for it, then he would not have allowed individuals to possess it. So from his permission to individuals to possess the water, it can be deduced that the Illah (reason) of partnership in the water, pastures and fire, is their being of the community utilities that are indispensable to the community. Hence anything that qualifies as being indispensable to the community is a community utility, which is considered a public property, whether or not it was water, pasture or fire i.e. whether it was specifically mentioned in the Hadith or not.

5. We also understand that the minerals found in the Earth of uncountable quantity which cannot be normally depleted are also considered a public property and should not be possessed individually due to the hadith from Tirmidhi.

6. We understand that when he (sallAllahu ‘alaihi wa sallam) realised that the salt mine was of a large quantity he reversed his grant and took it back thereby prohibiting its ownership by individuals. Thus it was not the salt, but rather the salt mine who’s ownership was prohibited individually as when Muhammad (sallAllahu ‘alaihi wa sallam) came to know it was non-depletable he prohibited its private ownership, despite the fact that he knew it was salt and that he had initially granted it.

7. This rule, that the uncountable and un-depleted minerals are considered a public property, includes all minerals, whether they on the surface of the earth such as salt, coal, sapphire, ruby, and the like. As well as gold, silver, iron, copper, lead and the like. This includes whether they are solid like crystal, or fluid like oil. All of them are minerals, which are included within the meaning of the Hadith.

8. We also understand that there are some items whose nature prevents them from coming under the domain of individual ownership. They are different to the public properties in the sense that in origin they cannot be individually owned. So Water, for example, could be possessed by individuals, but this is prohibited if the community cannot manage to live without it, unlike the case with roads which certainly cannot be owned by any individual. Therefore, although the evidence for this category is that the reason (Illah) is applicable to it and that it is from the community utilities, however its nature indicates that it belongs to the public property. This category includes roads, rivers, seas, lakes, public canals, gulfs, straits, dams and the like.

9. Thus the principal “The people are partners in the water, pastures and fire” was derived from a set of evidences and can be used to define the various properties within the Khilafah and can be used and applied instead of finding the individual evidences whenever an issue of ownership over items arises.

Commerce:

“Then if they give suckle to your children, give them their due payment …” [TMQ Surah At-Talaaq: 6]

The Messenger of Allah (sallAllahu ‘alaihi wa sallam) said: “Give the worker his wage before his sweat dries.”

Al-Bara'a bin 'Aazib and Zayd bin Arqam were (two) partners, so they bought silver with cash and on credit. This news reached the Messenger of Allah (sallAllahu ‘alaihi wa sallam) and he said to them “that (part) which was in cash, allow it, and that (part) which was in credit, return it back.”

Muhammed (sallAllahu ‘alaihi wa sallam) narrated that: Allah said “I am the third of the two partners as long as neither of them betrayed his companion. If one of them betrayed the other then I would come out from them.”

The Prophet (sallAllahu ‘alaihi wa sallam) also said: “the profit is according to the conditions placed by the contractors, and the loss is according to the amount of the property or fund.”

1. From these hadiths and ayah we can deduce the conditions for contracts in Islam which is the offer and acceptance of a permissible thing or service. We also understand that Islam made a contract between two people and not by the actions of one person.

2. We can also deduce the permissibility of employment, which is likened to hiring. Hence the skill of the engineer, doctor and technician is hired. We also deduce one of the conditions for employment is the agreement over the wage.

3. We can also deduce the permissibility of leasing and representation as these are just extensions of hiring.

4. We can also deduce the definition of a company and its conditions. The Sharika (Company) is an agreement between two or more people to do some type of work in order to make profit.

5. We understand from these evidences that one of the conditions for a valid company in Islam is that the debts of the company are distributed in proportion to the capital between the partners i.e. there is no limited liability.

6. We can also deduce the different types of company structures from the above evidences:

The Company of Equals (Al-'Inan) this is where both partners put their money into a business and work with it. Both partners would have the right to buy and sell and take the company forward, hence all partners are all equal in their deposal.

The Company of Bodies (Al-Abdan) this is where two or more people come together with their skills such as a consultant, doctor or craftsmen. Although they use their money, the skill they have is what constitutes the basis of the company.

The Company of Body and Capital (Mudharaba) this is where one funds the capital of the business and the other partner works with it. The partner who provides the capital element is a silent partner and takes no part in the running of the business. The other partner buys and sells on behalf of the company.

The Company of Reputation (Wujooh) this is a company similar to madharabah but the capital is provided by a silent partner who has respect and standing and based upon this the company trades. The partner could be a rich merchant, which would mean debts will always be paid by this company as they are backed by a wealthy individual.

Company of Negotiation (Mufawadha) this is any combination of the above.